Orr v. Knowles

• Decision Date: 29 July 1983
• Docket Number: No. 82-752,82-752
• Court: Nebraska Supreme Court
• Parties: G. William ORR, M.D., et al., Plaintiffs, v. Donald L. KNOWLES et al., Defendants. M. John EPP, M.D., et al., Plaintiffs, v. Charles THONE et al., Defendants.

Page 699

337 N.W.2d 699

215 Neb. 49

G. William ORR, M.D., et al., Plaintiffs, v. Donald L. KNOWLES et al., Defendants.

M. John EPP, M.D., et al., Plaintiffs, v. Charles THONE et al., Defendants.

No. 82-752.

Supreme Court of Nebraska.

July 29, 1983.

Lawrence I. Batt and Thomas P. Kenny of Garber & Batt, Omaha, for plaintiffs Orr et al.

Michael T. Levy and Michele Wheeler of Levy & Lazer, P.C., Omaha, for plaintiffs Epp et al.

Paul L. Douglas, Atty. Gen., and Frank J. Hutfless, Asst. Atty. Gen., Lincoln, for defendants.

Before KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

HASTINGS, Justice.

This matter comes before us pursuant to Neb.Rev.Stat. § 24-219 (Cum.Supp.1982) as 18 certified questions of law from the U.S. District Court for the District of Nebraska. The main thrust of these questions is a request that we interpret Neb.Rev.Stat. § 28-347 (Cum.Supp.1982) as it stands, and in light of other relevant provisions found under Nebraska law.

Section 28-347 reads: "(1) Except as provided in this section, no physician shall perform an abortion upon a minor without first having given at least twenty-four hours actual notice to one of the parents or the legal guardian, if any, of the minor as to the intention to perform such abortion. If such parent or guardian does not receive actual notice, the notice requirements of this section may be satisfied by sending notice to such parent or legal guardian by certified mail to the last-known address of such parent or guardian as indicated by the minor seeking the abortion at least forty-eight hours prior to the performance of such abortion, computed from the time of mailing.

"(2) The district court or any judge thereof in the county in which the minor resides or the abortion is to be performed or, in the absence from the county of such district judge the county court or a judge thereof, shall, upon it appearing satisfactorily to the court or judge by the affidavit or testimony of the petitioning minor that the minor is mature enough to make the abortion decision independently or that notification would not be in the minor's best interests, waive the notice requirements of subsection (1) of this section. A petitioning minor may initiate and participate on her own behalf in any proceeding brought pursuant to this subsection and the court may appoint a guardian ad litem for the petitioning minor. The court shall maintain confidentiality as to all proceedings brought pursuant to this subsection. The court shall expedite all proceedings filed by a minor pursuant to this subsection and shall render a decision within twenty-four hours of the initial proceeding on such petition.

"(3) This section shall not apply when an emergency situation exists such that continuation of the pregnancy provides an immediate threat and grave risk to the life or health of the pregnant minor and the attending physician so certifies by affidavit."

This statute has been attacked by the plaintiffs, two physicians and several pregnant minors. In considering its constitutionality, the U.S. District Court certified the following questions to this court for decision:

1. "Will the duties and responsibilities of a guardian ad litem who may be appointed for a minor under the authority of Section 28-347(2) be coextensive with those of an attorney representing a minor in the judicial proceeding authorized by that section; if not, in what respects will the duties and responsibilities differ?"

A review of Nebraska law indicates that there is no clear statement of what the duties or role of a guardian ad litem is. Several Nebraska statutes dealing with minors provide for the appointment of guardians ad litem.

In cases involving termination of parental rights, Neb.Rev.Stat. § 42-364(4) (Reissue 1978) provided in part as follows: "Such guardian ad litem shall forthwith personally investigate the facts and circumstances on all matters pertinent to the best interests and welfare of the children. If it appears to the guardian ad litem that the best interests and welfare of the children may require the termination of the parental rights of one or both parents, he shall apply to the court in writing or orally on the record for such termination." This statute was changed in 1982 and now provides that whenever termination of parental rights is placed in issue, the District Court shall transfer jurisdiction to a juvenile court unless a showing is made that the District Court is a more appropriate jurisdiction. "If no such transfer is made the court shall forthwith appoint an attorney as guardian ad litem to protect the interests of any minor children." § 42-364(4) (Cum.Supp.1982). We do not believe that this amendment significantly alters the nature of the duties of the guardian ad litem as provided for in the earlier statute.

Neb.Rev.Stat. § 43-104.06 (Reissue 1978) provides for the appointment of a guardian ad litem for children in paternity actions. That statute states: "Only upon the appointment of a guardian ad litem for the child, and a finding that the claimant is a fit person, is able to properly care for the child, and that the child's best interests will be served by granting custody of the claimant, shall custody be granted to the claimant." Again, under this statute it seems the guardian ad litem is to somehow participate in the determination of what is the best interests of the child.

Generally speaking, a guardian ad litem appears to be an individual who steps into the position of the minor and, after considering the alternatives, asserts the right of the minor as the guardian ad litem sees fit. Discussing the role of such a guardian, it has been stated:

"However, he is more than a nominal representative appointed to counsel and consult with the trial court, and he has all the duties, powers, and responsibilities of counsel who represents a party to litigation. On the other hand, the functions of a guardian ad litem are merely ministerial and not judicial or quasi-judicial, and his sole function as a representative is to control and manage the action. So, a report submitted by him should only set forth facts, accompanied by any point desired to be urged on behalf of the infant and recommendations to the court, and he should not act in the capacity of commissioner or master to make a report on which the decree is based. The findings contained in his report are not binding upon persons who are not represented by him. In any event, a decree is not rendered void by reason of the fact that it is based on the report of a guardian ad litem.

"It has been stated that the only purpose of a guardian ad litem appointed to represent infants in an action affecting a marriage is to determine which available alternatives are in the best interests of the infant. In a probate proceeding, the concurrent obligation of a guardian ad litem to the court and all the parties imposes a higher degree of objectivity on him than is imposed on an attorney for an adult client. Accordingly, he may not take a stance which, in effect, prevents the court or other parties from having full knowledge of material evidence which he has secured and deems pertinent to the issues affecting his ward. A guardian ad litem or a next friend may not make an election for an infant without the consent of the court; but it may be done with the consent of the court." 43 C.J.S. Infants § 234 at 610 (1978).

It seems from these statutes and this general discussion that the role of a guardian ad litem is something akin to the role of an attorney acting as legal counsel, but it is somewhat different. The Code of Professional Responsibility establishes that an attorney must zealously represent the wishes of his or her client. See Canon 7. It is not the role of an attorney acting as counsel to independently determine what is best for his client and then act accordingly. Rather, such an attorney is to allow the client to determine what is in the client's best interests and then act according to the wishes of that client within the limits of the law. EC 7-7.

In response to this first question, based upon the above discussion, we feel the duties and responsibilities of a guardian ad litem, as provided under § 28-347(2), are not coextensive with those of an attorney who might represent a minor in proceedings under this section. A guardian ad litem is to determine the best interests of the minor without necessary reference to the wishes of the minor.

2. "Is the filing of the petition for judicial waiver the 'initial proceeding' as that term is used in Section 28-347(2)?"

On the face of this statute it appears that a minor seeking to terminate her pregnancy has two options: first, to notify her parents, or, second, to obtain a court order stating she is mature enough to decide the question of whether her pregnancy will be terminated or not. In pursuing this latter course it seems she must petition the court for such an order. The statute states: "The court shall expedite all proceedings filed by a minor pursuant to this subsection and shall render a decision within twenty-four hours of the initial proceeding on such petition." (Emphasis supplied.) § 28-347(2). Giving this section its plain meaning, it would seem that this initial proceeding on the petition would occur sometime after the filing of the petition. To have a proceeding on the petition, the petition certainly must be already filed.

In addition to the fact that a straight reading of § 28-347(2) supports this view, to require or interpret it otherwise would be impractical. If the filing of the petition was the "initial proceeding" in this matter, a decision of the court would have to be forthcoming within 24 hours of that filing. As a practical matter this would be difficult if not impossible for the courts to comply with. This would mean the filing of the petition, the hearing on the petition, and the decision of court would all have to occur...